S.O. 1996, CHAPTER 2 Schedule A

Transcription

1 Français Health Care Consent Act, 1996 S.O. 1996, CHAPTER 2 Schedule A Consolidation Period: From August 20, 2007 to the e-laws currency date. Last amendment: 2007, c. 10, Sched. R, s. 14. Skip Table of Contents 1. Purposes 2. Interpretation 3. Meaning of excluded act 4. Capacity 5. Wishes 6. Research, sterilization, transplants 7. Restraint, confinement CONTENTS PART I GENERAL PART II TREATMENT GENERAL 8. Application of Part 9. Meaning of substitute decision-maker CONSENT TO TREATMENT 10. No treatment without consent 11. Elements of consent 12. Included consent 13. Plan of treatment 14. Withdrawal of consent CAPACITY 15. Capacity depends on treatment 16. Return of capacity 17. Information 18. Treatment must not begin 19. Order authorizing treatment pending appeal CONSENT ON INCAPABLE PERSON S BEHALF 20. Consent 21. Principles for giving or refusing consent 22. Information 23. Ancillary treatment 24. Admission to hospital, etc. EMERGENCY TREATMENT 25. Emergency treatment 26. No treatment contrary to wishes 27. Emergency treatment despite refusal 28. Admission to hospital, etc. PROTECTION FROM LIABILITY 29. Protection from liability 30. Person making decision on another s behalf 31. Admission to hospital, etc. APPLICATIONS TO BOARD 1

2 32. Application for review of finding of incapacity 33. Application for appointment of representative 34. Application with respect to place of treatment 35. Application for directions 36. Application to depart from wishes 37. Application to determine compliance with s Deemed application concerning capacity PART III ADMISSION TO CARE FACILITIES GENERAL 38. Application of Part 38. Application of Part 39. Definitions CONSENT ON INCAPABLE PERSON S BEHALF 40. Consent on incapable person s behalf 41. Determining who may give or refuse consent 42. Principles for giving or refusing consent 43. Information 44. Ancillary decisions 45. Withdrawal of consent 46. Admission must not be authorized CRISIS ADMISSION 47. Authorization of admission without consent 47.1 Incapacity PROTECTION FROM LIABILITY 48. Apparently valid consent to admission 49. Person making decision on another s behalf APPLICATIONS TO BOARD 50. Application for review of finding of incapacity 51. Application for appointment of representative 52. Application for directions 53. Application to depart from wishes 53.1 Application with respect to admission to secure units 54. Application to determine compliance with s Deemed application concerning capacity 54.2 Application to transfer to a secure unit PART IV PERSONAL ASSISTANCE SERVICES GENERAL 55. Application of Part 56. Meaning of substitute decision-maker DECISION ON INCAPABLE RECIPIENT S BEHALF 57. Decision on incapable recipient s behalf 58. Determining who may make decision 59. Principles for making decision 60. Information 61. Change of decision 62. Included consent 62.1 Information PROTECTION FROM LIABILITY 63. Protection from liability 64. Person making decision on recipient s behalf APPLICATIONS TO BOARD 65. Application for review of finding of incapacity 66. Application for appointment of representative 67. Application for directions 68. Application to depart from wishes 69. Application to determine compliance with s Deemed application concerning capacity PART V CONSENT AND CAPACITY BOARD 70. Consent and Capacity Board 2

3 70.1 Limit on jurisdiction 71. Chair and vice-chairs 71.1 Immunity 72. Staff 73. Assignment of Board members to deal with applications 74. Disqualification 75. Application hearings 76. Examination of documents 77. Communication re subject-matter of hearing 78. Only members at hearing to participate in decision 79. Release of evidence 80. Appeal 81. Counsel for incapable person PART VI MISCELLANEOUS 82. Offence: false assertion 83. Offence: misrepresentation of wishes 84. Offence: decision contrary to wishes 85. Regulations 87. Transition, treatment 88. Transition, admission 89. Transition, section Transition, section Transition, section Transition, section Transition, section Transition, section 36 Purposes PART I GENERAL 1. The purposes of this Act are, (a) to provide rules with respect to consent to treatment that apply consistently in all settings; (b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters; (c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by, (i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding, (ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and (iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to; (d) to promote communication and understanding between health practitioners and their patients or clients; (e) to ensure a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment, admission to a care facility or a personal assistance service; and (f) to permit intervention by the Public Guardian and Trustee only as a last resort in decisions on behalf of incapable persons concerning treatment, admission to a care facility or personal assistance services. 1996, c. 2, Sched. A, s. 1. Interpretation 2. (1) In this Act, attorney for personal care means an attorney under a power of attorney for personal care given under the Substitute Decisions Act, 1992; ( procureur au soin de la personne ) Board means the Consent and Capacity Board; ( Commission ) 3

4 capable means mentally capable, and capacity has a corresponding meaning; ( capable, capacité ) care facility means, (a) an approved charitable home for the aged, as defined in the Charitable Institutions Act, (b) a home or joint home, as defined in the Homes for the Aged and Rest Homes Act, (c) a nursing home, as defined in the Nursing Homes Act, or (d) a facility prescribed by the regulations as a care facility; ( établissement de soins ) Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of care facility is repealed by the Statutes of Ontario, 2007, chapter 8, subsection 207 (1) and the following substituted: care facility means, (a) a long-term care home as defined in the Long-Term Care Homes Act, 2007, or (b) a facility prescribed by the regulations as a care facility; ( établissement de soins ) See: 2007, c. 8, ss. 207 (1), 232 (2). community treatment plan has the same meaning as in the Mental Health Act; ( plan de traitement en milieu communautaire ) course of treatment means a series or sequence of similar treatments administered to a person over a period of time for a particular health problem; ( série de traitements ) evaluator means, in the circumstances prescribed by the regulations, a person described in clause (a), (l), (m), (o), (p) or (q) of the definition of health practitioner in this subsection or a member of a category of persons prescribed by the regulations as evaluators; ( appréciateur ) guardian of the person means a guardian of the person appointed under the Substitute Decisions Act, 1992; ( tuteur à la personne ) health practitioner means, (a) a member of the College of Audiologists and Speech-Language Pathologists of Ontario, (b) a member of the College of Chiropodists of Ontario, including a member who is a podiatrist, (c) a member of the College of Chiropractors of Ontario, (d) a member of the College of Dental Hygienists of Ontario, (e) a member of the Royal College of Dental Surgeons of Ontario, (f) a member of the College of Denturists of Ontario, (g) a member of the College of Dietitians of Ontario, Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of health practitioner is amended by the Statutes of Ontario, 2007, chapter 10, Schedule Q, section 13 by adding the following clause: (g.0.1) a member of the College of Homeopaths of Ontario, See: 2007, c. 10, Sched. Q, ss. 13, 15 (2). Clause (g.0.1) was enacted as clause (g.1) in source law, Statutes of Ontario, 2007, chapter 10, Schedule Q, section 13. The clause is renumbered in this consolidation to distinguish it from clause (g.1) enacted by source law, Statutes of Ontario, 2007, chapter 10, Schedule O, section 13. Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of health practitioner is amended by the Statutes of Ontario, 2007, chapter 10, Schedule O, section 13 by adding the following clause: (g.1) a member of the College of Kinesiologists of Ontario, See: 2007, c. 10, Sched. O, ss. 13, 15 (2). (h) a member of the College of Massage Therapists of Ontario, (i) a member of the College of Medical Laboratory Technologists of Ontario, (j) a member of the College of Medical Radiation Technologists of Ontario, (k) a member of the College of Midwives of Ontario, 4

5 (l) a member of the College of Nurses of Ontario, (m) a member of the College of Occupational Therapists of Ontario, (n) a member of the College of Optometrists of Ontario, (o) a member of the College of Physicians and Surgeons of Ontario, (p) a member of the College of Physiotherapists of Ontario, (q) a member of the College of Psychologists of Ontario, Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of health practitioner is amended by the Statutes of Ontario, 2007, chapter 10, Schedule R, section 14 by adding the following clause: (q.1) a member of the College of Psychotherapists and Registered Mental Health Therapists of Ontario, See: 2007, c. 10, Sched. R, ss. 14, 20 (2). (r) a member of the College of Respiratory Therapists of Ontario, (s) a naturopath registered as a drugless therapist under the Drugless Practitioners Act, or Note: On a day to be named by proclamation of the Lieutenant Governor, clause (s) is repealed by the Statutes of Ontario, 2007, chapter 10, Schedule P, section 15 and the following substituted: (s) a member of the College of Naturopaths of Ontario, or See: 2007, c. 10, Sched. P, ss. 15, 21 (2). (t) a member of a category of persons prescribed by the regulations as health practitioners; ( praticien de la santé ) hospital means an institution as defined in the Mental Hospitals Act, a private hospital as defined in the Private Hospitals Act or a hospital as defined in the Public Hospitals Act; ( hôpital ) incapable means mentally incapable, and incapacity has a corresponding meaning; ( incapable, incapacité ) mental disorder has the same meaning as in the Mental Health Act; ( trouble mental ) personal assistance service means assistance with or supervision of hygiene, washing, dressing, grooming, eating, drinking, elimination, ambulation, positioning or any other routine activity of living, and includes a group of personal assistance services or a plan setting out personal assistance services to be provided to a person, but does not include anything prescribed by the regulations as not constituting a personal assistance service; ( service d aide personnelle ) plan of treatment means a plan that, (a) is developed by one or more health practitioners, (b) deals with one or more of the health problems that a person has and may, in addition, deal with one or more of the health problems that the person is likely to have in the future given the person s current health condition, and (c) provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person s current health condition; ( plan de traitement ) psychiatric facility has the same meaning as in the Mental Health Act; ( établissement psychiatrique ) recipient means a person who is to be provided with one or more personal assistance services, (a) in an approved charitable home for the aged, as defined in the Charitable Institutions Act, (b) in a home or joint home, as defined in the Homes for the Aged and Rest Homes Act, (c) in a nursing home, as defined in the Nursing Homes Act, (d) in a place prescribed by the regulations in the circumstances prescribed by the regulations, (e) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or (f) by a provider prescribed by the regulations in the circumstances prescribed by the regulations; ( bénéficiaire ) Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of recipient is repealed by the Statutes of Ontario, 2007, chapter 8, subsection 207 (1) and the following substituted: recipient means a person who is to be provided with one or more personal assistance services, 5

6 (a) in a long-term care home as defined in the Long-Term Care Homes Act, 2007, (b) in a place prescribed by the regulations in the circumstances prescribed by the regulations, (c) under a program prescribed by the regulations in the circumstances prescribed by the regulations, or (d) by a provider prescribed by the regulations in the circumstances prescribed by the regulations; ( bénéficiaire ) See: 2007, c. 8, ss. 207 (1), 232 (2). regulations means the regulations made under this Act; ( règlements ) treatment means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include, (a) the assessment for the purpose of this Act of a person s capacity with respect to a treatment, admission to a care facility or a personal assistance service, the assessment for the purpose of the Substitute Decisions Act, 1992 of a person s capacity to manage property or a person s capacity for personal care, or the assessment of a person s capacity for any other purpose, (b) the assessment or examination of a person to determine the general nature of the person s condition, (c) the taking of a person s health history, (d) the communication of an assessment or diagnosis, (e) the admission of a person to a hospital or other facility, (f) a personal assistance service, (g) a treatment that in the circumstances poses little or no risk of harm to the person, (h) anything prescribed by the regulations as not constituting treatment. ( traitement ) 1996, c. 2, Sched. A, s. 2 (1); 2000, c. 9, s. 31. Refusal of consent (2) A reference in this Act to refusal of consent includes withdrawal of consent. 1996, c. 2, Sched. A, s. 2 (2). Meaning of excluded act 3. (1) In this section, excluded act means, (a) anything described in clause (b) or (g) of the definition of treatment in subsection 2 (1), or (b) anything described in clause (h) of the definition of treatment in subsection 2 (1) and prescribed by the regulations as an excluded act. 1996, c. 2, Sched. A, s. 3 (1). Excluded act considered treatment (2) If a health practitioner decides to proceed as if an excluded act were a treatment for the purpose of this Act, this Act and the regulations apply as if the excluded act were a treatment within the meaning of this Act. 1996, c. 2, Sched. A, s. 3 (2). Capacity 4. (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1996, c. 2, Sched. A, s. 4 (1). Presumption of capacity (2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. 1996, c. 2, Sched. A, s. 4 (2). Exception (3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be. 1996, c. 2, Sched. A, s. 4 (3). 6

7 Wishes 5. (1) A person may, while capable, express wishes with respect to treatment, admission to a care facility or a personal assistance service. 1996, c. 2, Sched. A, s. 5 (1). Manner of expression (2) Wishes may be expressed in a power of attorney, in a form prescribed by the regulations, in any other written form, orally or in any other manner. 1996, c. 2, Sched. A, s. 5 (2). Later wishes prevail (3) Later wishes expressed while capable prevail over earlier wishes. 1996, c. 2, Sched. A, s. 5 (3). Research, sterilization, transplants 6. This Act does not affect the law relating to giving or refusing consent on another person s behalf to any of the following procedures: 1. A procedure whose primary purpose is research. 2. Sterilization that is not medically necessary for the protection of the person s health. 3. The removal of regenerative or non-regenerative tissue for implantation in another person s body. 1996, c. 2, Sched. A, s. 6. Restraint, confinement 7. This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. 1996, c. 2, Sched. A, s. 7. Application of Part PART II TREATMENT GENERAL 8. (1) Subject to section 3, this Part applies to treatment. 1996, c. 2, Sched. A, s. 8 (1). Law not affected (2) Subject to section 3, this Part does not affect the law relating to giving or refusing consent to anything not included in the definition of treatment in subsection 2 (1). 1996, c. 2, Sched. A, s. 8 (2). Meaning of substitute decision-maker 9. In this Part, substitute decision-maker means a person who is authorized under section 20 to give or refuse consent to a treatment on behalf of a person who is incapable with respect to the treatment. 1996, c. 2, Sched. A, s. 9. No treatment without consent CONSENT TO TREATMENT 10. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless, (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or (b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person s substitute decision-maker has given consent on the person s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1). Opinion of Board or court governs (2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner s finding, or by a court on an appeal of the Board s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent. 1996, c. 2, Sched. A, s. 10 (2). Elements of consent 7

8 11. (1) The following are the elements required for consent to treatment: 1. The consent must relate to the treatment. 2. The consent must be informed. 3. The consent must be given voluntarily. 4. The consent must not be obtained through misrepresentation or fraud. 1996, c. 2, Sched. A, s. 11 (1). Informed consent (2) A consent to treatment is informed if, before giving it, (a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and (b) the person received responses to his or her requests for additional information about those matters. 1996, c. 2, Sched. A, s. 11 (2). (3) The matters referred to in subsection (2) are: 1. The nature of the treatment. 2. The expected benefits of the treatment. 3. The material risks of the treatment. 4. The material side effects of the treatment. 5. Alternative courses of action. 6. The likely consequences of not having the treatment. 1996, c. 2, Sched. A, s. 11 (3). Express or implied (4) Consent to treatment may be express or implied. 1996, c. 2, Sched. A, s. 11 (4). Included consent 12. Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes, (a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and (b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered. 1996, c. 2, Sched. A, s. 12. Plan of treatment 13. If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan of treatment, (a) propose the plan of treatment; (b) determine the person s capacity with respect to the treatments referred to in the plan of treatment; and (c) obtain a consent or refusal of consent in accordance with this Act, (i) from the person, concerning the treatments with respect to which the person is found to be capable, and (ii) from the person s substitute decision-maker, concerning the treatments with respect to which the person is found to be incapable. 1996, c. 2, Sched. A, s. 13. Withdrawal of consent 14. A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time, (a) by the person, if the person is capable with respect to the treatment at the time of the withdrawal; 8

9 (b) by the person s substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal. 1996, c. 2, Sched. A, s. 14. Capacity depends on treatment CAPACITY 15. (1) A person may be incapable with respect to some treatments and capable with respect to others. 1996, c. 2, Sched. A, s. 15 (1). Capacity depends on time (2) A person may be incapable with respect to a treatment at one time and capable at another. 1996, c. 2, Sched. A, s. 15 (2). Return of capacity 16. If, after consent to a treatment is given or refused on a person s behalf in accordance with this Act, the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person s own decision to give or refuse consent to the treatment governs. 1996, c. 2, Sched. A, s. 16. Information 17. A health practitioner shall, in the circumstances and manner specified in guidelines established by the governing body of the health practitioner s profession, provide to persons found by the health practitioner to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines. 1996, c. 2, Sched. A, s. 17. Treatment must not begin 18. (1) This section applies if, (a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that the person intends to apply, or has applied, to the Board for a review of the finding; and (c) the application to the Board is not prohibited by subsection 32 (2). 1996, c. 2, Sched. A, s. 18 (1). (2) This section also applies if, (a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment; (b) before the treatment is begun, the health practitioner is informed that, (i) the incapable person intends to apply, or has applied, to the Board for appointment of a representative to give or refuse consent to the treatment on his or her behalf, or (ii) another person intends to apply, or has applied, to the Board to be appointed as the representative of the incapable person to give or refuse consent to the treatment on his or her behalf; and (c) the application to the Board is not prohibited by subsection 33 (3). 1996, c. 2, Sched. A, s. 18 (2). (3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun, (a) until 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made; (b) until the application to the Board has been withdrawn; (c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board s decision; or (d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board s decision, 9

10 Emergency (i) until the period for commencing the appeal has elapsed without an appeal being commenced, or (ii) until the appeal of the Board s decision has been finally disposed of. 1996, c. 2, Sched. A, s. 18 (3). (4) This section does not apply if the health practitioner is of the opinion that there is an emergency within the meaning of subsection 25 (1). 1996, c. 2, Sched. A, s. 18 (4). Order authorizing treatment pending appeal 19. (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given. 1996, c. 2, Sched. A, s. 19 (1). Criteria for order (2) The court may make the order if it is satisfied, (a) that, (i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person s condition will not or is not likely to improve without the treatment, or (ii) the person s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate; (b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her; (c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and (d) that the person s condition makes it necessary to administer the treatment before the final disposition of the appeal. 1996, c. 2, Sched. A, s. 19 (2). Consent List of persons who may give or refuse consent CONSENT ON INCAPABLE PERSON S BEHALF 20. (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs: 1. The incapable person s guardian of the person, if the guardian has authority to give or refuse consent to the treatment. 2. The incapable person s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment. 3. The incapable person s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment. 4. The incapable person s spouse or partner. 5. A child or parent of the incapable person, or a children s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent. 6. A parent of the incapable person who has only a right of access. 7. A brother or sister of the incapable person. 8. Any other relative of the incapable person. 1996, c. 2, Sched. A, s. 20 (1). Requirements (2) A person described in subsection (1) may give or refuse consent only if he or she, (a) is capable with respect to the treatment; (b) is at least 16 years old, unless he or she is the incapable person s parent; 10

11 (c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf; (d) is available; and (e) is willing to assume the responsibility of giving or refusing consent. 1996, c. 2, Sched. A, s. 20 (2). Ranking (3) A person described in a paragraph of subsection (1) may give or refuse consent only if no person described in an earlier paragraph meets the requirements of subsection (2). 1996, c. 2, Sched. A, s. 20 (3). (4) Despite subsection (3), a person described in a paragraph of subsection (1) who is present or has otherwise been contacted may give or refuse consent if he or she believes that no other person described in an earlier paragraph or the same paragraph exists, or that although such a person exists, the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her making the decision. 1996, c. 2, Sched. A, s. 20 (4). No person in subs. (1) to make decision (5) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee shall make the decision to give or refuse consent. 1996, c. 2, Sched. A, s. 20 (5). Conflict between persons in same paragraph (6) If two or more persons who are described in the same paragraph of subsection (1) and who meet the requirements of subsection (2) disagree about whether to give or refuse consent, and if their claims rank ahead of all others, the Public Guardian and Trustee shall make the decision in their stead. 1996, c. 2, Sched. A, s. 20 (6). Meaning of spouse (7) Subject to subsection (8), two persons are spouses for the purpose of this section if, (a) they are married to each other; or (b) they are living in a conjugal relationship outside marriage and, (i) have cohabited for at least one year, (ii) are together the parents of a child, or (iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act. 1996, c. 2, Sched. A, s. 20 (7); 2004, c. 3, Sched. A, s. 84 (1-3). Not spouse (8) Two persons are not spouses for the purpose of this section if they are living separate and apart as a result of a breakdown of their relationship. 2004, c. 3, Sched. A, s. 84 (4). Meaning of partner (9) For the purpose of this section, partner means, (a) REPEALED: 2004, c. 3, Sched. A, s. 84 (5). (b) either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons lives. 2002, c. 18, Sched. A, s. 10; 2004, c. 3; Sched. A, s. 84 (5, 6). Meaning of relative (10) Two persons are relatives for the purpose of this section if they are related by blood, marriage or adoption. 1996, c. 2, Sched. A, s. 20 (10). Meaning of available (11) For the purpose of clause (2) (d), a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a consent or refusal. 1996, c. 2, Sched. A, s. 20 (11). Principles for giving or refusing consent 21. (1) A person who gives or refuses consent to a treatment on an incapable person s behalf shall do so in accordance with the following principles: 11

12 1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish. 2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person s best interests. 1996, c. 2, Sched. A, s. 21 (1). Best interests (2) In deciding what the incapable person s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration, (a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable; (b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and (c) the following factors: 1. Whether the treatment is likely to, i. improve the incapable person s condition or well-being, ii. prevent the incapable person s condition or well-being from deteriorating, or iii. reduce the extent to which, or the rate at which, the incapable person s condition or well-being is likely to deteriorate. 2. Whether the incapable person s condition or well-being is likely to improve, remain the same or deteriorate without the treatment. 3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her. 4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed. 1996, c. 2, Sched. A, s. 21 (2). Information 22. (1) Before giving or refusing consent to a treatment on an incapable person s behalf, a substitute decision-maker is entitled to receive all the information required for an informed consent as described in subsection 11 (2). 1996, c. 2, Sched. A, s. 22. Conflict (2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, , c. 3, Sched. A, s. 84 (7). Ancillary treatment 23. Authority to consent to a treatment on an incapable person s behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment. 1996, c. 2, Sched. A, s. 23. Admission to hospital, etc. 24. (1) Subject to subsection (2), a substitute decision-maker who consents to a treatment on an incapable person s behalf may consent to the incapable person s admission to a hospital or psychiatric facility or to another health facility prescribed by the regulations, for the purpose of the treatment. 1996, c. 2, Sched. A, s. 24 (1). Objection, psychiatric facility (2) If the incapable person is 16 years old or older and objects to being admitted to a psychiatric facility for treatment of a mental disorder, consent to his or her admission may be given only by, (a) his or her guardian of the person, if the guardian has authority to consent to the admission; or (b) his or her attorney for personal care, if the power of attorney contains a provision authorizing the attorney to use force that is necessary and reasonable in the circumstances to admit the incapable person to the psychiatric facility and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, , c. 2, Sched. A, s. 24 (2). 12

13 EMERGENCY TREATMENT Emergency treatment Meaning of emergency 25. (1) For the purpose of this section and section 27, there is an emergency if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm. 1996, c. 2, Sched. A, s. 25 (1). Emergency treatment without consent: incapable person (2) Despite section 10, a treatment may be administered without consent to a person who is incapable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; and (b) the delay required to obtain a consent or refusal on the person s behalf will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm. 1996, c. 2, Sched. A, s. 25 (2). Emergency treatment without consent: capable person (3) Despite section 10, a treatment may be administered without consent to a person who is apparently capable with respect to the treatment, if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; (b) the communication required in order for the person to give or refuse consent to the treatment cannot take place because of a language barrier or because the person has a disability that prevents the communication from taking place; (c) steps that are reasonable in the circumstances have been taken to find a practical means of enabling the communication to take place, but no such means has been found; (d) the delay required to find a practical means of enabling the communication to take place will prolong the suffering that the person is apparently experiencing or will put the person at risk of sustaining serious bodily harm; and (e) there is no reason to believe that the person does not want the treatment. 1996, c. 2, Sched. A, s. 25 (3). Examination without consent (4) Despite section 10, an examination or diagnostic procedure that constitutes treatment may be conducted by a health practitioner without consent if, (a) the examination or diagnostic procedure is reasonably necessary in order to determine whether there is an emergency; and (b) in the opinion of the health practitioner, (i) the person is incapable with respect to the examination or diagnostic procedure, or (ii) clauses (3) (b) and (c) apply to the examination or diagnostic procedure. 1996, c. 2, Sched. A, s. 25 (4). Record (5) After administering a treatment in reliance on subsection (2) or (3), the health practitioner shall promptly note in the person s record the opinions held by the health practitioner that are required by the subsection on which he or she relied. 1996, c. 2, Sched. A, s. 25 (5). Continuing treatment (6) Treatment under subsection (2) may be continued only for as long as is reasonably necessary to find the incapable person s substitute decision-maker and to obtain from him or her a consent, or refusal of consent, to the continuation of the treatment. 1996, c. 2, Sched. A, s. 25 (6). (7) Treatment under subsection (3) may be continued only for as long as is reasonably necessary to find a practical means of enabling the communication to take place so that the person can give or refuse consent to the continuation of the treatment. 1996, c. 2, Sched. A, s. 25 (7). Search 13

14 (8) When a treatment is begun under subsection (2) or (3), the health practitioner shall ensure that reasonable efforts are made for the purpose of finding the substitute decision-maker, or a means of enabling the communication to take place, as the case may be. 1996, c. 2, Sched. A, s. 25 (8). Return of capacity (9) If, after a treatment is begun under subsection (2), the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person s own decision to give or refuse consent to the continuation of the treatment governs. 1996, c. 2, Sched. A, s. 25 (9). No treatment contrary to wishes 26. A health practitioner shall not administer a treatment under section 25 if the health practitioner has reasonable grounds to believe that the person, while capable and after attaining 16 years of age, expressed a wish applicable to the circumstances to refuse consent to the treatment. 1996, c. 2, Sched. A, s. 26. Emergency treatment despite refusal 27. If consent to a treatment is refused on an incapable person s behalf by his or her substitute decision-maker, the treatment may be administered despite the refusal if, in the opinion of the health practitioner proposing the treatment, (a) there is an emergency; and (b) the substitute decision-maker did not comply with section , c. 2, Sched. A, s. 27. Admission to hospital, etc. 28. The authority to administer a treatment to a person under section 25 or 27 includes authority to have the person admitted to a hospital or psychiatric facility for the purpose of the treatment, unless the person objects and the treatment is primarily treatment of a mental disorder. 1996, c. 2, Sched. A, s. 28. Protection from liability Apparently valid consent to treatment PROTECTION FROM LIABILITY 29. (1) If a treatment is administered to a person with a consent that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for administering the treatment without consent. 1996, c. 2, Sched. A, s. 29 (1). Apparently valid refusal of treatment (2) If a treatment is not administered to a person because of a refusal that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for failing to administer the treatment. 1996, c. 2, Sched. A, s. 29 (2). Apparently valid consent to withholding or withdrawal (3) If a treatment is withheld or withdrawn in accordance with a plan of treatment and with a consent to the plan of treatment that a health practitioner believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this Act, the health practitioner is not liable for withholding or withdrawing the treatment. 1996, c. 2, Sched. A, s. 29 (3). Emergency: treatment administered (4) A health practitioner who, in good faith, administers a treatment to a person under section 25 or 27 is not liable for administering the treatment without consent. 1996, c. 2, Sched. A, s. 29 (4). Emergency: treatment not administered (5) A health practitioner who, in good faith, refrains from administering a treatment in accordance with section 26 is not liable for failing to administer the treatment. 1996, c. 2, Sched. A, s. 29 (5). Reliance on assertion (6) If a person who gives or refuses consent to a treatment on an incapable person s behalf asserts that he or she, (a) is a person described in subsection 20 (1) or clause 24 (2) (a) or (b) or an attorney for personal care described in clause 32 (2) (b); (b) meets the requirement of clause 20 (2) (b) or (c); or (c) holds the opinions required under subsection 20 (4), 14

15 a health practitioner is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances. 1996, c. 2, Sched. A, s. 29 (6). Person making decision on another s behalf 30. A person who gives or refuses consent to a treatment on another person s behalf, acting in good faith and in accordance with this Act, is not liable for giving or refusing consent. 1996, c. 2, Sched. A, s. 30. Admission to hospital, etc. 31. (1) Sections 29 and 30, except subsection 29 (4), apply, with necessary modifications, to admission of the incapable person to a hospital, psychiatric facility or other health facility referred to in section 24, for the purpose of treatment. 1996, c. 2, Sched. A, s. 31 (1). (2) A health practitioner who, in good faith, has a person admitted to a hospital or psychiatric facility under section 28 is not liable for having the person admitted without consent. 1996, c. 2, Sched. A, s. 31 (2). Application for review of finding of incapacity APPLICATIONS TO BOARD 32. (1) A person who is the subject of a treatment may apply to the Board for a review of a health practitioner s finding that he or she is incapable with respect to the treatment. 1996, c. 2, Sched. A, s. 32 (1). Exception (2) Subsection (1) does not apply to, (a) a person who has a guardian of the person, if the guardian has authority to give or refuse consent to the treatment; (b) a person who has an attorney for personal care, if the power of attorney contains a provision waiving the person s right to apply for the review and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, , c. 2, Sched. A, s. 32 (2). Parties (3) The parties to the application are: 1. The person applying for the review. 2. The health practitioner. 3. Any other person whom the Board specifies. 1996, c. 2, Sched. A, s. 32 (3). Powers of Board (4) The Board may confirm the health practitioner s finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner. 1996, c. 2, Sched. A, s. 32 (4). Restriction on repeated applications (5) If a health practitioner s finding that a person is incapable with respect to a treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance. 1996, c. 2, Sched. A, s. 32 (5). (6) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the person s capacity. 1996, c. 2, Sched. A, s. 32 (6). Decision effective while application for leave pending (7) The Board s decision under subsection (5) remains in effect pending an application for leave under subsection (6). 2000, c. 9, s. 32. Application for appointment of representative 33. (1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf. 1996, c. 2, Sched. A, s. 33 (1). Application by proposed representative 15

16 (2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person. 1996, c. 2, Sched. A, s. 33 (2). Exception (3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority. 1996, c. 2, Sched. A, s. 33 (3). Parties (4) The parties to the application are: 1. The incapable person. 2. The proposed representative named in the application. 3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 20 (1). 4. The health practitioner who proposed the treatment. 5. Any other person whom the Board specifies. 1996, c. 2, Sched. A, s. 33 (4). Appointment (5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person s behalf, (a) to the proposed treatment; (b) to one or more treatments or kinds of treatment specified by the Board, whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or (c) to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it. 1996, c. 2, Sched. A, s. 33 (5). Criteria for appointment (6) The Board may make an appointment under this section if it is satisfied that the following requirements are met: 1. The incapable person does not object to the appointment. 2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made. 3. The appointment is in the incapable person s best interests. 1996, c. 2, Sched. A, s. 33 (6). Powers of Board (7) Unless the incapable person objects, the Board may, (a) appoint as representative a different person than the one named in the application; (b) limit the duration of the appointment; (c) impose any other condition on the appointment; (d) on any person s application, remove, vary or suspend a condition imposed on the appointment or impose an additional condition on the appointment. 1996, c. 2, Sched. A, s. 33 (7). Termination (8) The Board may, on any person s application, terminate an appointment made under this section if, (a) the incapable person or the representative requests the termination of the appointment; (b) the representative is no longer capable with respect to the treatments or the kinds of treatment for which the appointment was made; (c) the appointment is no longer in the incapable person s best interests; or (d) the incapable person has a guardian of the person who has authority to consent to the treatments or the kinds of treatment for which the appointment was made, or an attorney for personal care under a power of attorney conferring that authority. 1996, c. 2, Sched. A, s. 33 (8). 16

17 Application with respect to place of treatment 34. (1) A person may apply to the Board for a review of a decision to consent on the person s behalf to the person s admission to a hospital, psychiatric facility or other health facility referred to in section 24 for the purpose of treatment. 1996, c. 2, Sched. A, s. 34 (1). Exception (2) Subsection (1) does not apply to a decision to consent on the person s behalf to the person s admission to a psychiatric facility as an informal patient, as defined in the Mental Health Act, if the person is at least 12 years old but less than 16 years old. 1996, c. 2, Sched. A, s. 34 (2). Admission and treatment despite application (3) The decision to admit the person to the hospital, psychiatric facility or health facility may take effect, and the treatment may be administered, even if the person indicates that he or she intends to apply to the Board under subsection (1) or under subsection 13 (1) of the Mental Health Act and even if the application to the Board has been made and has not yet been finally disposed of. 1996, c. 2, Sched. A, s. 34 (3). Parties (4) The parties to the application are: 1. The person applying for the review. 2. The person who consented to the admission. 3. The health practitioner who proposed the treatment. 4. Any other person whom the Board specifies. 1996, c. 2, Sched. A, s. 34 (4). Considerations (5) In reviewing the decision to admit the person to the hospital, psychiatric facility or health facility for the purpose of treatment, the Board shall consider, (a) whether the hospital, psychiatric facility or health facility can provide the treatment; (b) whether the hospital, psychiatric facility or health facility is the least restrictive setting available in which the treatment can be administered; (c) whether the person s needs could more appropriately be met if the treatment were administered in another place and whether space is available for the person in the other place; (d) the person s views and wishes, if they can be reasonably ascertained; and (e) any other matter that the Board considers relevant. 1996, c. 2, Sched. A, s. 34 (5). Order (6) The Board may, (a) direct that the person be discharged from the hospital, psychiatric facility or health facility; or (b) confirm the decision to admit the person to the hospital, psychiatric facility or health facility. 1996, c. 2, Sched. A, s. 34 (6). Restriction on repeated applications (7) If the decision to admit the person is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of the decision to admit within six months after the final disposition of the earlier application, unless the Board gives leave in advance. 1996, c. 2, Sched. A, s. 34 (7). (8) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the decision to admit. 1996, c. 2, Sched. A, s. 34 (8). Application under Mental Health Act (9) For the purpose of subsection (7), a final disposition of an application made under section 13 of the Mental Health Act shall be deemed to be a final disposition of an application under this section. 1996, c. 2, Sched. A, s. 34 (9). Application for directions 17